Skip to comments.PA open carry activists file suits against Dickson City police
Posted on 07/11/2008 3:00:00 PM PDT by marktwain
Five open carry activists in Pennsylvania have filed two separate federal civil rights lawsuits against Dickson City police Officers Anthony Mariano and Karen Gallagher, and Chief William Stadnitski in the aftermath of a May 9 incident in which the plaintiffs were confronted and detained even though they had broken no laws.
Gun Week first reported the incident in the June 15 edition.
The first complaint, filed in US District Court for the Middle District of Pennsylvania, alleges that Gallagher and Mariano "illegally threatened, harassed, detained and/or accosted" plaintiffs Richard and Judy Banks, Roger McCarren and Larry Meyer while they were dining at a restaurant Banks, McCarren and Meyer were all visibly armed, and were essentially minding their own business. The lawsuit asserts that the plaintiffs' rights were violated under the First, Fourth, Fifth and 14th Amendments.
The other lawsuit, filed individually by Edward J. Kraft Jr. names Gallagher, Mariano and the Dickson City Borough, but not Chief Stadnitski.
All four plaintiffs in the Banks lawsuit were with several other people, and according to filing papers, Banks, McCarren and Meyer "were ordered (by Mariano and Gallagher) to report to a different section of the restaurant for `investigation'." However, the lawsuit contends, there was no explanation of what was being investigated.
Banks refused to provide identification, believing that the officers had no justification to ask for it, so he was then, according to the lawsuit, "illegally and unjustifiably handcuffed, frisked, and arrested, his personal property illegally confiscated and he was thereafter placed in the back seat of the Dickson City marked police car."
Kraft's lawsuit details his encounter with Gallagher and supports the account of the incident contained in the Banks documents. In all, according to the two lawsuits, the officers had nine or 10 men in the group standing outside in the rain, coercing them to produce identification and concealed carry permits, the latter of which is not required in Pennsylvania if someone is carrying openly.
Gun Week earlier spoke to Stadnitski, who said this was the first incident in his 37 years in law enforcement that involved private citizens openly carrying a firearm, other than while hunting. He also maintained that his officers erred on the side of caution when responding to a 911 call from a restaurant patron that complained about people "brandishing guns."
"There was no ill will on our part," Stadnitski stated. That is not how the incident is portrayed in the lawsuit filed by attorney Robert J. McGee, who is representing the Banks plaintiffs. He believes the incident began because another patron in the restaurant was "unhappy and uncomfortable that someone had a firearm in a holster on their hip" and called the police. He does not know who placed the initial 911 call. Magee told Gun Week that the process could take some time, because the defendants have 30 days in which to respond, and then there will be motions, discovery, depositions and a conference, and all of that takes time. Likewise, the confrontation between Kraft and Gallagher, as portrayed in the lawsuit filed by attorney Johanna L. Gelb of Scranton, suggests that both Gallagher and Mariano acted "without cause or justification." In the Kraft lawsuit, it is alleged that "Mariano falsely informed the group...that they did, in fact, need a concealed weapons permit to openly carry a firearm in the Commonwealth of Pennsylvania."
The Banks lawsuit also complains that Gallagher and Mariano "refused to return...a handgun which Banks had in his possession at the time..." They also seized a handgun from McCarren and "refused to return it to him, on the basis that, according to some type of illegal registry maintained or available to the Dickson City Police Department, the handgun was not 'registered' to...McCarren."
Banks was ultimately released after, according to the filing document, "Gallagher and Mariano realized they had no basis for placing (him) under arrest...but it was only after an extended period of time."
Banks' lawsuit also describes a confrontation between the officers and Judy Banks, who tried to videotape and audiotape the encounter between the officers and the three other plaintiffs. The officers ordered Judy Banks to stop recording "under threat of being arrested for violation of the federal wiretap law," the document states. Meanwhile, Kraft alleges that "Gallagher and Mariano acted with a conscious and/or reckless disregard of the constitutional rights of Kraft to be free from unreasonable detentions, searches and seizures, and to be deprived of his property without due process of law."
Kraft's lawsuit says both officers "illegally threatened, detained, searched and seized him, and otherwise interfered with his rights under the Second, Fourth and Fourteenth Amendments..." The incident has infuriated open carry activists across the country, who have been following developments on OpenCarry.org, an Internet forum set up for the growing open carry community. This is not the first time an open carry confrontation between citizens and the police has resulted in a federal civil rights lawsuit. A few years ago, another such lawsuit was filed, according to Magee, who also represented the earlier client. That lawsuit was settled but the terms of that settlement were confidential, the attorney said.
Richard Banks is the founder of Pennsylvania Open Carry, an offshoot of OpenCarry.org
And here’s tip for the keyboard commando E. Allen.
A 911 call for a man with a gun is justification for an investigation. Did the investigation go to far, yes.
You need to research the difference between Reasonable Suspicion and Probable Cause BEFORE you share your expertise and criticisms.
Every time you see a cop with a gun, make the 911 call. It would make as much sense.
If more people had attitudes like yours, women would still not be able to vote, blacks would still be riding in the back of the bus, and we'd all still be English colonists.
A confrontation like this is what needs to happen in EVERY jurisdiction that practices such blatant harassment of a perfectly LEGAL act.
Your willingness to not fight for our Rights and to just "not make waves" is duly noted.
Since you profess to know the PA Crimes Code better than I, please post the relevant section and subsection that you would charge under for open carry. If the 911 call did not allege brandishing the weapon, exactly what crime are you investigating?